2d 25
George Lewry brought suit against the town of Gorham, Maine, and two of its
police officers, Ted Blais, and Sgt. Wayne Coffin, and against the town of
Standish and its police officer, William McAuliffe, alleging false arrest in
violation of the United States and Maine Constitutions, 42 U.S.C. 1983 et
seq., 15 Me.R.S.A. 704, and Maine common law. An amended complaint
added officer Timothy Darnell of Standish, alleging a second false arrest. The
district court referred the suit to a magistrate. 28 U.S.C. 636(b)(1). After
discovery closed, defendants moved for summary judgment, and plaintiff filed
a Rule 56(f) motion along with his opposition. The motion sought to introduce
evidence contradicting defendants'. Without taking up the motion, the
magistrate issued a report and recommended approval of summary judgment on
defendants' evidence. Upon a general objection, the district court conducted a
de novo review, again without reference to plaintiff's motion, and accepted the
magistrate's recommendation. Plaintiff appeals, arguing that material issues of
fact exist, and, for the first time, pointing out that the magistrate and district
court improperly failed to regard the motion. As these are questions of law, our
review is de novo. Liberty Mut. Ins. Co. v. Commercial Union Ins. Co., 978
F.2d 750, 757 (1st Cir.1992). We affirm.
The November, 1989 Incident
2
At the time of the alleged false arrests plaintiff was on probation for multiple
driving violations including driving while intoxicated. On November 7th, 1989,
he telephoned his probation officer, Elizabeth Manchester, and informed her
that he was too ill to meet with her that day for their bi-weekly meeting. Several
hours later plaintiff appeared at Tavern on the Hill, with one Frank Bickford,
his employer. While there, Bickford, and his son-in-law, who owned the
tavern, engaged in an altercation, and, when defendant officer McAuliffe of
Standish arrived to investigate, he and Bickford also began fighting.
If plaintiff's motion should have been allowed, the magistrate's failure to pass
on it was a correctable error within this principle just as would have been an
express denial. His recommendation, that was necessarily inconsistent with the
motion, was an implied denial thereof. Addington v. Farmer's Elevator Mut.
Ins. Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct.
672, 70 L.Ed.2d 640 (1981), cited with approval, Posadas de Puerto Rico, Inc.
v. Radin, 856 F.2d 399, 401 (1st Cir.1988). Because plaintiff did not seasonally
complain, we cannot consider the motion, and the record must stand without its
content.
6
Plaintiff was walking alone, weaving drunkenly between the roadway and the
shoulder of a well-traveled Standish road around 11:30 p.m., on or about April
21, 1990. He was wearing dark clothing, which made him more difficult to see.
When he was in the roadway, passing cars were forced to move to avoid him.
Defendant officer Darnell of Standish observed plaintiff, approached and spoke
with him. Deciding that plaintiff was intoxicated and a safety hazard to himself
and others, Darnell said he would give him a ride to his home about five miles
away. When plaintiff declined, Darnell gave him a choice of a ride home or an
arrest for obstructing a public way. 17-A Me.R.S.A. 505. Plaintiff accepted
the ride, and Darnell gave him a quick pat-down search before allowing him to
sit unrestrained in the rear seat. Darnell then drove plaintiff home. Plaintiff
seeks damages under the same claims of law as above, now against officer
Darnell and the town of Standish.
L.Ed.2d 1000 (1976); United States v. Rodriguez-Morales, 929 F.2d 780 (1st
Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). 17A Me. R.S.A. 505 provides as follows.
505. Obstructing public ways
10
11
12
Whoever places rocks, stones, snow, ice or other obstructions in such a manner
as to obstruct traffic on a traveled road and leaves them there shall be punished
by a fine of not more than $10 for each offense, to be recovered on complaint,
to the use of the town where the offense is committed.
15
16
We must observe that we think this claim a fuss about nothing. Was plaintiff to
be left on the highway?
17
Affirmed.